Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF130775 Elisabeth Sichel and Roger A. Luebs, Judges.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
On Fourth Amendment grounds, defendant and appellant Robert Anthony Soria appeals the trial court’s pretrial denial of his motion to suppress evidence under Penal Code section 1538.5. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At a preliminary hearing, a deputy sheriff testified he was on routine patrol about 8:00 p.m. on June 9, 2006, when he conducted a traffic stop of a vehicle being driven by defendant. The deputy searched the vehicle and found a loaded nine-millimeter automatic pistol. While the deputy was booking defendant at the jail, defendant spontaneously admitted he hid the pistol when the deputy initiated the traffic stop. The deputy determined the gun was not registered. A gang expert also testified defendant is an active participant in a gang and, as a result, both defendant and the gang would have benefitted from defendant’s possession of the gun.
Defendant was charged in count 1 with being a felon in possession of a handgun (§ 12021, subd. (a)(1)) and in count 2 with carrying a loaded firearm in a vehicle on a public street (§ 12031, subd. (a)(2)(f)). As to both counts, it was alleged defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b).) It was further alleged defendant served a prior prison term within the meaning of section 667.5, subdivision (b), had incurred a serious felony within the meaning of section 667, subdivision (a), and had one prior strike conviction pursuant to sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
On August 19, 2008, defendant filed a motion to suppress arguing the traffic stop was unreasonable under the Fourth Amendment. On September 19, 2008, the court held an evidentiary hearing on defendant’s motion. After considering testimony by the arresting deputy and a defense expert, the trial court denied defendant’s motion.
Defendant’s trial commenced on June 24, 2009. On June 30, 2009, the court heard testimony from a gang expert and then granted defendant’s motion to dismiss the gang allegations. (§ 186.22, subd. (b).) As a result of this ruling, defendant was no longer subject to the five-year serious felony enhancement in section 667, subdivision (a). Immediately thereafter, defendant pled guilty to counts 1 and 2 and admitted the prior prison term and the prior strike.
On count 1, the trial court sentenced defendant to 16 months, doubled to 32 months because of the strike. The court also imposed 16 months doubled to 32 months on count 2, but stayed the sentence under section 654. The court then added a one-year consecutive term as a result of the prior prison term. Defendant is therefore serving an aggregate term of three years eight months in state prison.
DISCUSSION
Defendant contends the traffic stop was unreasonable under the Fourth Amendment because the air freshener hanging from his rearview mirror was not enough to establish a reasonable suspicion he was in violation of Vehicle Code section 26708, subdivision (a)(2). He therefore argues the trial court should have granted his motion to suppress evidence.
In reviewing a denial of a motion to suppress, we defer to the trial court’s factual findings where they are supported by substantial evidence and, based on these factual findings, we exercise our independent judgment to determine whether the search was reasonable under Fourth Amendment standards. (People v. Glaser (1995) 11 Cal.4th 354, 362.) To determine whether evidence must be excluded because of a Fourth Amendment violation, “we look exclusively to whether its suppression is required by the United States Constitution.” (Glaser, at p. 363.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) A motorist may be stopped by a law enforcement officer based on objectively reasonable suspicion of a violation of the Vehicle Code or some other law. (Whren v. United States (1996) 517 U.S. 806, 810.)
With differing results, two recent cases have considered whether a small, tree-shaped air freshener hanging from a vehicle’s rearview mirror was enough to constitute an objectively reasonable suspicion the driver was in violation of Vehicle Code section 26708. Subdivision (a)(2) of Vehicle Code section 26708 provides as follows: “A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle that obstructs or reduces the driver’s clear view through the windshield or side windows.” In People v. White (2003) 107 Cal.App.4th 636 (White), the First District, Division Five, concluded it was unreasonable for the officer to believe the air freshener was obstructing the driver’s clear view. (Id. at p. 642.) In a more recent case entitled People v. Colbert (2007) 157 Cal.App.4th 1068 (Colbert), the Sixth District reached the opposite conclusion based on slightly different facts. In this case, defendant contends the facts of his case are more analogous to those considered in White. As a result, he argues the trial court should have granted his motion to suppress.
In White, supra, 107 Cal.App.4th 636, the officer stopped the defendant’s vehicle based on two purported violations of the Vehicle Code. For our purposes, the only relevant reason for the stop was a tree-shaped air freshener hanging from the rearview mirror. (Id. at p. 641.) The officer testified the air freshener “remained in a stationary position” while he followed the vehicle. (Ibid.) The First District, Division Five, cited several evidentiary details in support of its conclusion the officer did not have a reasonable basis for believing the air freshener was obstructing the driver’s clear view. First, “the officer never testified that he believed the air freshener obstructed the driver’s view.” (Id. at p. 642.) Second, “the officer never testified to other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver’s clear view was impeded.” (Ibid.) Third, a civil engineer, who testified on behalf of the defense, said the air freshener would not obstruct the driver’s vision “based on the relative sizes of the air freshener and windshield.” (Ibid.) Fourth, the driver testified the air freshener did not obstruct his view while he was driving the vehicle. (Ibid.) “Finally, the trial court, itself, noted the ubiquitous nature of these air fresheners and stated that it had ‘difficulty accepting’ that such an object would really obstruct a driver’s view.” (Ibid.)
By contrast, the evidence presented in Colbert was “precisely what was missing in White....” (Colbert, supra, 157 Cal.App.4th at p. 1073.) The officer in Colbert explained “he had personally experienced the view obstruction that an object of that size could pose when he hung a similar-sized object from the rearview mirror of his personal vehicle.” (Ibid.) Based on his own personal experience, the officer testified he believed an air freshener hanging in this manner could actually obstruct the driver’s view of other vehicles or pedestrians despite its small size. (Ibid.) In addition, no expert testimony was offered to support the defense theory as there was in White. (Ibid.) Therefore, the court concluded the officer’s testimony “provided specific and articulable facts that supported an objectively reasonable conclusion that the hanging air freshener in defendant’s vehicle violated Vehicle Code section 26708, subdivision (a)(2).” (Ibid.)
Although defendant contends his motion to suppress should have been granted because the facts here are comparable to White, the evidence presented at the hearing on defendant’s motion is actually more analogous to the evidence found sufficient in Colbert. The deputy testified he observed defendant driving a vehicle with an air freshener hanging from the rearview mirror, and the air freshener was “swaying back and forth.” He initiated a traffic stop of the vehicle, based on his belief that “the air freshener that was hanging from the rearview mirror and swinging back and forth was causing obstruction of the defendant’s view through the front windshield.” The deputy explained he stopped the vehicle “for obstructed view” and asked defendant for his identification. He also asked defendant whether he was on parole. When defendant indicated he was on parole, the deputy contacted dispatch and learned defendant was “a parolee at large, wanted, armed, and dangerous.” Based on an outstanding warrant for his arrest, the deputy took defendant into custody, and the loaded pistol was discovered during a postarrest search of the vehicle.
Unlike Colbert, it is true the deputy in this case did not testify he personally experienced an obstructed view with a similarly-sized object in his own vehicle. However, his testimony was nonetheless sufficient for the trial court to conclude the deputy had a reasonable belief the air freshener was obstructing defendant’s view, particularly because it was swinging back and forth. In other words, his testimony, like the testimony in Colbert, provided specific and articulable facts to support an objectively reasonable conclusion defendant was in violation of Vehicle Code section 26708, subdivision (a)(2).
On the other hand, this case is somewhat distinguishable from White because an expert did testify in this case to support the defense theory the officer could not have had a reasonable belief defendant’s view was obstructed by the air freshener. The expert testified he compared the area of the air freshener to the area of the windshield. According to the expert’s calculations, the air freshener would, at most, obstruct 1.4 inches of a driver’s observable view. As a result, defendant argued the affect of the air freshener on a driver’s view would be minimal, so there was no justification for the traffic stop. However, “[t]he possibility [that the air freshener did not impair the driver’s view] does not deprive the officer of the capacity to entertain a reasonable suspicion of [an impairment in violation of the Vehicle Code]. Indeed, the principal function of [the traffic stop] is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal....’ ” (People v. Souza, supra, 9 Cal.4th at p. 233.)
Nor was the expert’s testimony enough to negate the deputy’s reasonable belief because it did not address or take into account all relevant factors. For example, the expert’s opinion did not consider the placement of the actual driver in relation to the air freshener and in relation to a pedestrian or another vehicle. Nor did it consider the movement of the air freshener while the vehicle was in motion. Therefore, based on our independent judgment, we cannot conclude the trial court erroneously denied defendant’s motion to suppress evidence obtained as a result of the search of defendant’s vehicle.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., MILLER J.